OAH 58-0908-17784-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF VETERINARY MEDICINE
|
In the Matter of the Veterinary License of Carl W. Seeman, D.V.M., License No. 962 |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above matter came on
for hearing before Administrative Law Judge Linda F. Close on August 7, 8, and
9, 2007. The OAH record closed on
October 2, 2007, upon receipt of post-hearing briefs.
Peter Krieser and Tiernee
Murphy, Assistant Attorneys General (AAG),
Zenas
Baer, Zenas Baer and Associates,
1. Did Respondent engage in conduct demonstrating incompetence in the practice of veterinary medicine, including departure from the acceptable and prevailing practice in violation of Minn. Stat. § 156.081, subd. 2 (11) and Minn. R. 9100.0800, subp. 1[1]?
2. Did Respondent engage in unprofessional conduct as defined in statute and rules of the Board or engage in conduct that violates any statute or rule of the Board in violation of Minn. Stat. § 156.081, subd. 2 (12); Minn. R. 9100.0700, subp. 1B and C and 9100.0800, subp. 1?
3. Did Respondent engage in conduct that violates a statute or rule of the Board and constitutes an imminent risk of harm to others in violation of Minn. Stat. § 156.126?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
Respondent’s Practice
1.
Respondent graduated from the veterinary school
at
2.
Respondent had
3. Respondent’s practice is a small animal practice. He performs approximately 20 declaws, spays and castrations per year. His wife, Margaret Seeman, assists him in his practice, and they are its sole employees.[7] Margaret Seeman answers the phone, makes appointments, feeds and waters the animals, cleans cages, and exercises the dogs.[8] She also assists Respondent during surgery.[9] Because the Seeman home is located above the hospital, Respondent and his wife are able to hear animals and attend to them during the night. The Seemans set their alarm clock so that they can check on animals during the night.[10]
4.
Respondent regularly attends continuing
veterinary education courses. Following
each class, he writes notes on 3 x 5 note cards, which he then files
alphabetically for future reference.
These note cards now fill two 12” x 6” file drawers.[11] Respondent believes he has attended more
continuing education courses than any other veterinarian in
5. During the 1960s, Respondent developed a surgical procedure to alleviate excruciating back pain in animals with bulging disks. Respondent has presented and published the methodology he developed. It continues to be used to relieve pain in affected animals.[13] Respondent’s work has been cited in Canine Neurology, a text by a leading expert in canine neurology, Dr. Hoerlein.[14]
Care of Jazz
6.
On
7. Respondent administered ketamine[17] and Versed[18] in order to relax Jazz while Respondent took x-rays of Jazz’s leg.[19] Respondent then discussed with Jazz’s owners their options for the care of Jazz, which consisted of leaving Jazz with Respondent for surgery or taking Jazz back to their home in the Twin Cities for surgery.[20] The owners opted to leave Jazz with Respondent, who indicated he would perform surgery the following day.[21]
8. Respondent did not give Jazz any pain medication between the time of the x-rays on May 29th and the surgery on May 30th.[22] The surgery was an open reduction in which Respondent made a four inch incision. He was able to snap the fractured bone pieces together so that they fit perfectly. He then fixed the bone pieces with three screws. Respondent did not give Jazz any pain medication when Jazz woke up after the surgery.[23]
9. Margaret Seeman had assisted in the surgery.[24] Following the surgery, she called Linda Lovegreen and spoke with her about the surgery. Lovegreen asked whether Respondent had given Jazz any pain medication after the surgery. Margaret Seeman reported that he had not.[25] Margaret Seeman told Lovegreen that the surgery had been difficult and that Respondent wanted to keep the dog for a week or two.[26] Respondent believed that four to five days after surgery, the fracture would be beginning to heal and strengthen.[27]
10. The owners became concerned about leaving Jazz in Respondent’s care due to their concerns about Respondent not treating Jazz’s pain.[28] The owners decided to pick Jazz up from Respondent’s hospital and bring him to a Twin Cities veterinarian. Johnson went to the hospital the day after the surgery. Johnson saw that Jazz was in pain. Jazz didn’t relate to Johnson, and his tail did not wag. He was lethargic, and his head was down.[29] Jazz walked on three legs and was lifted into Johnson’s car.[30] Respondent gave Jazz torbugesic for pain, because he believed the ride back to the Twin Cities would be difficult for Jazz.[31]
Care in Declaw, Spay, and Surgical Procedures
11.
On
12. Respondent does not routinely administer post-surgical pain medication. Respondent does not administer pain medication until he observes the animal in pain after the animal has recovered from the anesthesia. At the time of the CRC conference, Respondent did not know what pre-emptive pain medication was. Respondent believes that pain management is in the process of being developed in veterinary medicine.[33] Respondent believes pain medication is a new trend in veterinary medicine.[34]
13.
For declaw procedures, Respondent uses a
combination of Versed and ketamine, followed by an inhaled anesthetic. The declaw surgery used by Respondent removes
only about one-fifth of the tissue removed in the whole-digit surgery typically
performed at the
14. For spays, Respondent has not routinely administered post-surgical pain medication. He believes the animals he has operated on look happy after surgery. He does not want to give medication that will have a sedative effect on the animal. If the Board requires him to give post-surgical pain medication, he will do it. Otherwise, he would judge each case individually.[36]
15. For orthopaedic surgeries, Respondent has not routinely prescribed post-surgical pain medication. He has used his judgment based on observations of the animal.[37] He now believes that he has not been as aware of post-surgical pain as he might have been.[38]
16.
As to fractures, Respondent believes that he has
not been “up to snuff” regarding post-surgical pain medication.[39]
17.
In January 2007, Respondent attended the North
American Veterinary Conference (NAVC) in
a. His ideas about pain management have been “absolutely” changed.[41]
b. Overusing pain medication can have damaging effects.[42]
c. An animal must be allowed to recovery from anesthesia before any analgesia is given.[43]
d. He would “strongly consider” whether a declaw patient was in pain before giving pain medication.[44]
e. Non-steroidal anti-inflamatory drugs (NSAIDs) interfere with healing.[45]
f. He does not know the difference between one class of drug and another.[46]
g. He does not know that one of the drugs he was using, ketamine, would provide pain relief if he gave it intravenously.[47]
h. He would not change his pain management protocol for declaws.[48]
Expert Testimony of the Committee
18.
Dr. Jane Quandt testified as an expert witness
on behalf of the CRC. From 1991 until
1999, she taught anesthesiology at the University of Georgia College of
Veterinary Medicine. In 1993, Dr. Quandt
became certified as an anesthesiologist by the
a.
Standards of care for pain management have
developed within the past twenty years and have been taught at the
b. Dr. Quandt routinely consults with outstate veterinarians about pain management in their cases. Consequently, she is familiar with the statewide standard of care.[50]
c. Pain in animals follows the same nociceptive pathway as it follows in humans. Since animals experience pain as humans do, animal pain should be treated as human pain is.[51]
d. Untreated pain becomes heightened because the body becomes increasingly sensitized to pain. This is referred to as a “wind up” process.[52] Consequently, pain should be managed pre-emptively.[53] Pre-emptive, intra-operative pain medication prevents nerve plasticity, in which stimulated nerves become hyper sensitized.[54]
e. Pain management is not a new development in veterinary medicine, although there are new modalities and new techniques.[55]
f. Analgesics, including NSAIDs, should be administered in combination because this provides longer relief than administering a single drug.[56]
g. The American Animal Hospital Association (AAHA) has published its 2003 pain management requirements that direct pre-emptive use of pain management; prescribe analgesic therapy as a tool to confirm the existence of pain; and require pain management for all surgical procedures.[57]
h. The Handbook of Veterinary Pain Management is a reliable authority on the treatment of pain in animals.[58] The book describes a number of procedures and explains for each the source and level of pain; treatment options; and drugs to be used pre-, intra- and post- procedurally. The book is authoritative and was published in 2002.[59]
i. The Companion Animal Pain Management Handbook describes various procedures and the degree of pain anticipated for the procedure. It sets forth two sample protocols for pre-, intra-, and post-operative analgesia. The book was published in 2002 and is authoritative.[60]
j. The minimum standard of acceptable and prevailing practice for cat declaws is to provide post-operative pain relief.[61] Failing to provide it is cruel.[62]
k. The minimum standard of acceptable and prevailing practice for spays is to provide post-operative pain relief.[63]
l. The minimum standard of acceptable and prevailing practice for administration of post-operative pain relief requires that relief be given before recovery from anesthesia.[64]
m. The minimum standard of acceptable and prevailing practice requires that an animal be given analgesia anytime there is a surgical procedure.[65]
n. The minimum standard of acceptable and prevailing practice for the fracture reduction performed on Jazz required the use of analgesia pre- and post-operatively.[66]
19.
Dr. Carl Jessen testified as an expert witness
on behalf of Respondent. Dr. Jessen taught
veterinary radiology at the
a. There are no published standards on pain management. Standards are instead learned. Pain medication is up to the judgment of the individual veterinarian.[69]
b. Pain management issues came to the forefront of veterinary medicine in the 1970s due to federal laws regulating animal research facilities. Standards for pain management in the research facility were high, but those in the teaching hospital were higher still. The standards in the community of practitioners outside the university setting are not as high.[70]
c. Veterinary students have been taught the effects of analgesics on heart rate and other functions since 1946.[71]
d. He is not aware of the publication of the 2003 AAHA requirements for pain management.[72] He is aware of, but has not read, the Companion Animal Pain Management Handbook or The Handbook of Veterinary Pain Management.[73]
20.
Dr. James Wilson also testified as an expert witness
on behalf of Respondent. Dr. Wilson obtained
his doctor of veterinary medicine degree from
a. He has acquired knowledge of pain management standards of care through recent book learning. He felt he could no longer teach professional negligence classes without referring to pain management because it has become a “hot topic” in the last two to three years.[76]
b. He has also acquired knowledge of pain management standards of care by discussing the subject with a board-certified anesthesiologist, Heidi Schafford.
c. Dr. Wilson is not aware of any published standards of practice for the use of analgesics.[77]
d. Dr. Wilson believes that standards of care are different depending on whether the practice is a primary care practice, a secondary (or referral) practice, or a tertiary (university) practice.[78]
e. Dr. Wilson also believes that standards of care are different depending on whether veterinary services are delivered according to a pediatrician (animal-focused or anthropologic) model or a garage-mechanic (owner-focused, utilitarian) model of care. Under the garage-mechanic model, the animal is viewed as chattel and the owner’s wishes are paramount.[79]
f. Dr. Wilson further believes there is a standard of care based on pure economics: Class A is the best, most expensive care; Class B is for those who can’t afford Class A; and Class C is for those who have very limited resources to spend on pet care. Class F is the euthanasia class.[80]
g. Dr. Wilson does not believe there was a standard of care for pain management in May 2006.[81]
h. Dr. Wilson believes that Respondent’s care of Jazz met the minimum standard of care for pain management.[82]
i. Dr. Wilson believes that whether the standard of care for pain management is met with respect to a spay depends on the ability of the owner to pay.[83]
j. Dr. Wilson believes Respondent violated the standard of care by not administering pain medication following declaws.[84]
k.
Dr. Wilson has not read the
l. Dr. Wilson had never heard of the “wind up” theory of pain until a student explained it to him earlier this year.[86]
Procedural Finding of Fact
21.
On
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Board and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 156.081, 156.127, 214.10 and 214.103.
2. The Board has authority to take disciplinary action against licensed veterinarians under Minn. Stat. §§ 156.081 and 156.127.
3. The CRC gave proper notice of the hearing in this matter and has fulfilled all relevant procedural requirements of law and rule.
4. The CRC has the burden of proof in this proceeding and must establish the facts at issue by a preponderance of the evidence.[88]
5. The CRC has proved by a preponderance of the evidence that Respondent engaged in conduct demonstrating incompetence in the practice of veterinary medicine, including departure from the acceptable and prevailing practice in violation of Minn. Stat. § 156.081, subd. 2 (11) and Minn. R. 9100.0800, subp. 1 as follows:
a. Respondent failed to manage competently the pain of a fracture patient named Jazz and departed from the acceptable and prevailing practice regarding pain management in his care of Jazz.
b. Respondent departed from the acceptable and prevailing practice regarding pain management for dogs and cats undergoing spays.
c. Respondent departed from the acceptable and prevailing practice regarding pain management for cats undergoing declaws.
d. Respondent departed from the acceptable and prevailing practice regarding pain management following surgery.
6. The CRC has proved by a preponderance of the evidence that Respondent engaged in unprofessional conduct as defined in statute and rules of the Board and engaged in conduct that violates any statute or rule of the Board in violation of Minn. Stat. § 156.081, subd. 2 (12) and Minn. R. 9100.0700, subp. 1B and C and 9100.0800, subp. 1 by treating pain unprofessionally in fracture, spay, declaw, and surgery patients.
7. The CRC has proved by a preponderance of the evidence that Respondent engaged in conduct that violates a statute or rule of the Board and constitutes an imminent risk of harm to others in violation of Minn. Stat. § 156.126 by treating pain unprofessionally in fracture, spay, declaw, and surgery patients.
8. As a result of these violations, the Board has the authority to take appropriate disciplinary action against the Respondent’s license.[89]
9. The Administrative Law Judge adopts as Conclusions any Findings which are more appropriately described as Conclusions.
10. The bases and reasons for these Conclusions are those expressed in the Memorandum that follows, and the Administrative Law Judge incorporates that Memorandum into these Conclusions.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge respectfully recommends that the Board take disciplinary action against Respondent’s license to practice veterinary medicine.
Dated: October 31, 2007
s/Linda
F. Close
|
LINDA
F. CLOSE Administrative
Law Judge |
Reported: Transcribed:
Three volumes
Kirby
Kennedy & Associates
This Report is a
recommendation, not a final
decision. The Minnesota State Board of Veterinary
Medicine will make the final decision after reviewing the hearing record. The Board may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the Board may
not make its final decision until after the parties have had access to this Report
for at least ten days. During that time,
the Board must give each party adversely affected by this Report an opportunity
to file objections to the report and to present argument. Parties should contact John King, the
Executive Director, Minnesota State Board of Veterinary Medicine,
The record of this contested case proceeding closes
upon the filing of exceptions to the report and the presentation of argument to
the Board, or upon the expiration of the deadline set by the Board for doing
so.[90] The Board must notify the parties and the
Administrative Law Judge of the date on which the record closes. If the Board fails to issue a final decision
within 90 days of the close of the record, the Board must return the record of
the proceeding to the administrative law judge for consideration of
disciplinary action.[91] Upon a showing of good
cause by a party or the Board, the Chief Administrative Law Judge may order a
reasonable extension of that 90-day deadline.
In administrative contested case proceedings, “[t]he party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard.”[92] The Veterinary Practice Act does not specify the standard of proof in disciplinary proceedings, and no other statute specifically addresses the applicable standard of proof in a veterinary license proceeding. Therefore, the CRC’s burden is to prove the facts at issue by a preponderance of the evidence.[93]
Respondent argues that the applicable standard is “clear and convincing evidence.” Any other standard, he asserts, violates due process. The law is otherwise, however. In In the Matter of Wang,[94] the Minnesota Supreme Court confirmed that the standard of proof for professional licensing matters is the preponderance of the evidence standard. Because of the importance of the outcome to the professional, the Court reminded the fact finder that evidence must have “heft” when it said:
. . . [P]roceedings brought on behalf of the state, attacking a person’s professional and personal reputation and character and seeking to impose disciplinary sanctions, are no ordinary proceedings. We trust that in all professional disciplinary matters, the finder of fact, bearing in mind the gravity of the decision to be made, will be persuaded only by evidence with heft. The reputation of a profession, and the reputation of a professional as well as the public’s trust are at stake.[95]
The Court thus did not boost the standard of proof in Wang. But it did admonition fact finders to carefully weigh the evidence and evaluate its quality and quantity. As set forth below, the CRC’s evidence, both in quality and quantity, far outweighs that presented by the Respondent.
The Need for Expert Opinion
The CRC has alleged three violations: Respondent has practiced incompetently;[96] he has failed to conform to the minimum standards of acceptable and prevailing practice;[97] and his practice has created an imminent risk of harm to others on account of his violations of statutes and rules of the Board.[98] The evidence to prove these charges is of a piece, in that the same conduct violates all three statutory provisions. The charges require the fact finder to ascertain how a professional ought to have conducted his or her practice under the circumstances and then to measure Respondent’s conduct against the ascertained standards of conduct.
The Parties have thus focused their arguments on what the standard of care for pain management, if any, is. Proof of standards depends on the testimony of experts.[99] The CRC presented one expert, and Respondent called two. The ALJ is persuaded that the credible expert testimony clearly supports the existence of pain management standards for fracture, spay and declaw surgeries. And the undisputed factual testimony demonstrates that Respondent did not conform to those standards, failed to practice competently and thereby created a risk of harm to others.
Testimony of the Experts
Of the testifying experts, only Dr.
Jane Quandt presented legitimate credentials on the subject of pain
management. Dr. Quandt’s practice has
focused on pain management for more than twenty years. Her knowledge of the subject is both
theoretical and practical, because she has researched, studied, taught, and
practiced pain management techniques throughout her career. She has practiced in
Dr. Jessen testified for
Respondent. Like Dr. Quandt, he has
worked at the
Dr. Wilson, another expert called by
Respondent, is a late-comer to the topic of pain management. His field is veterinary law. Like Dr. Jessen, he has not performed
surgeries for many years. Perhaps for
this reason, he has taken a theoretical and philosophical approach to the topic
of pain management. His sources are
books, not clinical practice. While he
has apparently had some contact with practicing veterinarians about their pain
management practices, there was no evidence that these sources practiced in
Dr. Wilson and Dr. Jessen do agree with Dr. Quandt on one important issue: both acknowledge that a fracture like that experienced by Jazz would cause pain.[103] Dr. Wilson also shared Dr. Quandt’s opinion that Respondent’s failure to give pain medication following declaw did not meet the standard of care.[104]
From Dr. Quandt’s testimony, it is clear that the minimum standard of care requires the administration of pre-, intra-, and post-operative analgesic. This opinion is supported by standards set out in The Handbook of Veterinary Pain Management and The Companion Animal Handbook. These sources provide detailed pain management information for practitioners, and they were available well before May of 2006, when Respondent treated Jazz. Dr. Quandt’s testimony, based on her clinical experience and knowledge, is both qualitatively and quantitatively superior to that of Respondent’s experts.
Respondent argues that Dr. Quandt’s testimony compels the conclusion that standards are so variable as not to be real standards at all. In support, he cites Dr. Quandt’s statements that standards differ depending on the degree of specialization[105] and the veterinarian’s chosen model for practice, be it pediatrician or garage mechanic model.[106] Dr. Quandt, however, made clear that minimum standards are similar between specialist and generalist in that pain requires treatment.[107]
As to the different models of practice, Dr. Quandt was never asked and did not state that there were differences in pain management standards depending on the practice model a veterinarian adopts. Respondent’s argument suggests that, since the garage-mechanic model sees the animal as the property of its owner, only the owner can say what the standard of practice should be. The ALJ agrees with the CRC that, regardless of how tort law or property law may view the relationship of an animal owner to the animal, a veterinarian is bound by professional standards set forth under the laws pursuant to which the veterinarian is allowed to practice. Those laws require competence, professionalism, and adherence to the minimum standards of “acceptable and prevailing standards of practice.”[108]
Respondent also argues that the
standard of care differs depending on the geographic location of the
practitioner.
Application of the Standard of Care
The facts surrounding Respondent’s care of animals, including Jazz, are not disputed. Instead of pre-emptively providing pain medication, Respondent relies on his own judgment about whether an animal is having pain before giving pain relief. It is clear from these facts that Respondent’s care of animals does not conform to the applicable standards of care as set out by Dr. Quandt. Respondent violated the minimum standards of acceptable and prevailing practice in all his surgical procedures, including that performed on Jazz.
As Dr. Quandt testified, Respondent’s approach of waiting to see pain in an animal misses the mark in several ways. To begin with, waiting for the animal to exhibit signs of pain may be futile. Animals are stoic and may seem to be indifferent to pain when they are, in reality, hiding the pain.[110] In addition, untreated pain escalates, which means that more pain medication is needed to subdue the pain than if the animal had not become sensitized to pain to begin with.[111] Pain should be treated “on schedule” rather than as needed, for this reason.[112] Finally, healing is promoted when the animal is calm and comfortable, as it is when pain has been treated.[113]
Dr. Quandt testified emphatically that it is cruel[114] not to provide pain medication under circumstances where pain is a normal result of a procedure.[115] Pain will occur when an animal is cut open to perform a spay, declaw, or surgery such as the open reduction Jazz underwent.[116] Consequently, pain medication is necessary for any surgery.
Respondent did not routinely administer pain medication after declaws, spays, and other surgeries. He stated this to the CRC when he conferenced with them in September 2006, and he continued to admit this at hearing. This failure was not, apparently, the result of cruelty, but of Respondent’s misplaced confidence in his ability to judge an animal’s level of pain. Respondent did not, for example, observe any pain in Jazz. Jazz’s owner, by contrast, recognized that Jazz was in pain as soon as he saw him the day following surgery.[117] Respondent’s own experts acknowledged that animals who have surgery experience pain.
Respondent has had a lengthy career in
veterinary medicine. It is unfortunate,
then, that he appears not to have taken to heart his ten-hour pain management
course in
Respondent argues that Dr. Quandt’s testimony compels the conclusion that standards are so variable as not to be real standards at all. In support, he cites Dr. Quandt’s statements that standards differ depending on the degree of specialization[120] and the veterinarian’s chosen model for practice, be it pediatrician or garage mechanic model.[121] Dr. Quandt, however, made clear that minimum standards are similar between specialist and generalist in that pain requires treatment.[122]
As to the different models of practice, Dr. Quandt was never asked and did not state that there were differences in pain management standards depending on the model a veterinarian adopts. And the evidence supports the position that, regardless of a veterinarian’s philosophical view, the standard of practice requires the administration of pain medication when an animal undergoes a procedure that causes pain.[123]
Based on Respondent’s own testimony and in light of the expert testimony the conclusion that he has violated standards, practiced incompetently and created an imminent risk of harm to others is inescapable.
Respondent’s Constitutional Challenge
Respondent argues that his due process rights have been violated in that
the rule requiring prevailing standards to be followed is vague. The power
to decide constitutional questions is vested in the judicial branch, not the
ALJ or the Board.[124] But,
like courts, Administrative Law Judges must interpret and apply statutes and
rules in a manner that does not violate our constitutions.[125]
Statutes and rules must meet due
process standards of definiteness.[126] To satisfy due process, laws
must give an individual fair warning of what is
prohibited.[127] A statute is void for vagueness
if it defines the forbidden or required act in terms so vague that individuals
must guess at its meaning, or it defines an act in a manner that encourages
arbitrary and discriminatory enforcement.[128] If persons “of common
intelligence” must speculate as to a statute’s meaning, the statute is impermissibly
vague.[129]
The CRC has charged Respondent
with “incompetence in the practice of veterinary medicine, including any
departure from or failure to conform to the minimum standards of acceptable and
prevailing practice….”[130] The Board’s rules set forth a general
standard regarding minimum standards of practice as follows:
The delivery of veterinary care must be provided in a competent and
humane manner consistent with prevailing standards of practice for the species
and the professed area of expertise of the veterinarian.[131]
Respondent’s constitutional argument
is similar to that made by the licensee in Reyburn
v. Minnesota Bd. of Optometry.[132] The licensee argued that the phrase
“unprofessional conduct” in the practice act for optometrists so lacks
specificity as to violate due process. In Reyburn,
the Supreme Court concluded that the Legislature need not specify acts that
constitute “unprofessional conduct” because the phrase itself is sufficient to
guide practitioners.
The ALJ is persuaded that the use of
the word “incompetence” and the phrase “failure to conform to acceptable and
prevailing practice” give fair warning to practitioners about what is
prohibited. The rule notifies
practitioners that their treatment is to “humane,” which is particularly
instructive in this case, where treating an animal for pain is the issue. All three experts acknowledged that animals
feel pain.[133]
For this reason, the humane way to treat
an animal’s pain is to provide pain medication.
Respondent also argues that he had
inadequate notice, prior to the September 2006 conference, of any issue other
than his care of Jazz. When more general
questions arose about his treatment of spays and declaws, he was unfairly
surprised, Respondent suggests.
The CRC has broad authority to meet
with licensees.
… may be held for the purposes of investigation, negotiation, education, or conciliation. The results of attempts at resolution with the regulated person may include a recommendation to the board for disciplinary action....[134]
Clearly, the CRC was within its statutory procedures to use the conference for investigatory purposes by asking general questions about Respondent’s practice.
Conclusion
For the reasons set forth above, the ALJ concludes that disciplinary action is warranted and has therefore recommended that such action be taken by the Board.
L. F. C.
[1] The Notice of Hearing referred to
[2] Transcript (T.) at 396.
[3] T. at 398.
[4] T. at 399.
[5] T. at 399-400.
[6] T. at 417-20; Ex. 127.
[7] T. at 279.
[8] T. at 631.
[9] T. at 424.
[10] T. at 633-34.
[11] T. at 407-8; Ex. 127.
[12] T. 267.
[13] T. 425-27; Ex. 116.
[14] T. 434; Ex. 123.
[15] T. at 228, 463; Ex. 105
[16] T. at 228.
[17] Ketamine is a drug that has analgesic effect. T. at 51.
[18] Versed is a muscle relaxant that has no analgesic effect. T. at 51.
[19] T. at 303.
[20] T. at 229.
[21] T. at 229.
[22] T. at 304.
[23] T. at 304-05.
[24] T. at 643-44.
[25] T. at 645.
[26] T. at 231.
[27] T. at 361.
[28] T. at 232; Ex. 3.
[29] T. at 229-30.
[30] T. at 641.
[31] T. at 308.
[32] Ex. 4.
[33] T. at 288-90.
[34] T. at 283.
[35] T. at 299-302.
[36] T. at 291-92.
[37] T. at 295; Ex. 4.
[38] T. at 297.
[39] T. at 299.
[40] T. at 267-68.
[41] T. at 269.
[42] T. at 270.
[43] T. at 289.
[44] T. at 301.
[45] T. at 309-13.
[46] T. at 310.
[47] T. at 478-79.
[48] T. at 302.
[49] T. at 29, 120, 148.
[50] T. at 30-31.
[51] T. at 42-44; Ex. 16.
[52] T. at 34.
[53] T. at 35, 52.
[54] T. at 50.
[55] T. at 104; 109.
[56] T. at 55.
[57] Ex. 16, Appendix 1.
[58] T. at 81-2.
[59] Ex. 15.
[60] T. 41; Ex. 16.
[61] T. at 90.
[62] T. at 92.
[63] T. at 107.
[64] T. at 102.
[65] T. at. 103.
[66] T. at 114.
[67] T. at 376.
[68] T. at 378-80.
[69] T. at 382-83; 388.
[70] T. at 385-86.
[71] T. at 390.
[72] T. at 391.
[73] T. at 393.
[74] Ex. 103; T. at 535.
[75] T. at 516.
[76] T. at 500.
[77] T. at 507-08.
[78] T. at 538-40.
[79] T. at 541-42.
[80] T. at 543.
[81] T. at 544.
[82] T. at 581.
[83] T. at 585.
[84] T. at 584-85.
[85] T. at 620-21.
[86] T. at 617-18.
[87] See
[88] Minn. R. 1400.7300, subp. 5.
[89]
[90] Minn. Stat. § 156.126 provides an expedited schedule for the Board to consider and decide a case emanating from a temporary suspension. Respondent, however, waived the statutory schedule by seeking continuances of the hearing. Accordingly, the schedule set forth in this Notice is that applicable to an ordinary licensing matter. The Board, however, may wish to consider the application of the cited statute under circumstances where the statutory hearing schedule has been waived.
[91] See Minn. Stat. § 14.62, subd. 2a.
[92] Minn. R. pt. 1400.7300, subpt. 5; See also In the Matter of Friedenson, 574 N.W.2d 463, 466 (Minn. App. 1998) (due process not violated by temporary suspension procedures); In re Uckun, 733 N.W.2d 778 (Minn. Ct. App. 2007) (due process not violated by application of preponderance of the evidence standard in temporary suspension proceeding).
[93] Friedenson, supra.
[94]
441 N.W.2d 488 (
[95] 441 N.W.2d at 492. (Emphasis supplied.)
[96] Minn. Stat. § 156.081, subd. 2 (11) and Minn. R. 9100.0800, subp. 1.
[97] Minn. Stat. § 156.081, subd. 2 (12); Minn. R. 9100.0700, subp. 1B and C; Minn. R. 9100.0800, subp. 1.
[98]
[99]
See Reyburn v. Minnesota State Bd. of
Optometry, 78 N.W.2d 351, 355 (
[100] T. at 385.
[101] T. at 392.
[102] T. at 373.
[103] T. at 31-36, 392, 617. Dr. Wilson could not opine about whether
Respondent’s declaw procedure would cause less pain than the declaw procedure
used at the
[104] T. at 584-85.
[105] T. at 162-63.
[106] T. at 174.
[107] T. at 163.
[108]
[109] See
Viita v. Fleming, 132
[110] T. at. 43.
[111] T. at 35.
[112] T. at 52.
[113] T. at 45.
[114] Dr. Wilson similarly testified that administering pain medication for declaw procedures is an act that prevents cruelty to animals. T. at 584.
[115] T. at 92.
[116] See Ex. 15, 16.
[117] T. at 230.
[118] T. at 289, 310.
[119] T. at 309-13.
[120] T. at 162-63.
[121] T. at 174.
[122] T. at 163.
[123] Even if Respondent’s argument that owners dictate standards is accepted, studies show that 99% of owners want their animals to have their pain treated and 91% assume their veterinarian is providing pain medication. Ex. 16. Thus, if owners dictate the standard under a garage-mechanic model, then the animals must surely be treated for pain, since that is what owners want.
[124]
See
Neeland v. Clearwater Memorial Hospital,
257 N.W.2d 366, 369 (Minn. 1977); In re Rochester Ambulance Service, 500 N.W.2d 495, 499-500 (Minn. Ct.
App. 1993); Holt v. State Bd. of Medical
Examiners, 431 N.W.2d 905, 906 (Minn. Ct. App. 1988), rev. denied (Minn.
Jan. 13, 1989).
[125] State v. Crims,
540 N.W.2d 860, 867 (Minn. Ct. App. 1995), rev. denied (Minn. Jan. 23,
1996).
[126] See State v. Normandale Properties, Inc.,
420 N.W.2d 259, 261 (Minn. Ct. App. 1988), rev. denied (Minn. May 4,
1988).
[127]
Minnesota
League of Credit Unions v. Minnesota Dept. of Commerce, 486 N.W.2d 399, 404 (
[128] Humenansky v. Minnesota Bd. of Medical
Examiners, 525 N.W.2d 559, 564 (Minn. Ct. App. 1994), rev. denied (Minn.
Feb. 14, 1995); citing Kolender v.
Lawson, 461
[129] Proetz v.
Minnesota Bd. of Chiropractic Examiners, 382 N.W.2d 527, 534 (Minn. Ct. App.
1986), rev. denied (Minn. May 16, 1986), citing Matter of Welfare
of A.K.K., 356 N.W.2d 337, 343 (Minn. Ct. App. 1984).
[130] Minn. Stat. § 156.081, subd. 1 (11).
[131] Minn. R. 9100.0800, subp. 1.
[132] 247
[133] T. at 42; 392, 617.
[134]